Breaking the Circle: Goal-Legislation and the Need for Empirical Research

Abstract

The discussion about the proper methodology for legal studies and the current emphasis in this debate on the necessity of empirical research in order to complement or even substitute classical doctrinal interpretation cannot be understood without taking into account some important changes in the law itself. For a number of years I have studied these changes under the banner of goal-legislation. After a short introduction to the key features of goal-legislation, it will be analysed to what extent these features challenge the notion that law is an autopoietic system that processes input and output in a typical ‘legal’ way. It will be argued that the form of conditional reasoning which is so characteristic of legal reasoning has undergone drastic changes as a result of goal-regulation. Goal-regulation increases the need for a more empirical orientation because (i) law-making is increasingly outsourced to non-legal experts and its concepts are often derived from non-legal discourse. (ii) Many rules are drafted on the basis of an empirical assessment of the level of performance that can reasonably be expected. (iii) Rules are primarily drafted in view of the achievement of policy-goals which invites to a constant monitoring of the ways in which these rules effectively contribute to the achievement of goals. It is argued that these three major openings of legal systems to the outside world may explain the need to complement (doctrinal) knowledge of rules with (empirical) knowledge about rules. However, this does not mean that we should discard the traditional notion of legal doctrine altogether. Rules perform multiple functions. They are not only instrumental for realizing policy goals but are also reasons for justifying and criticising behaviour, stabilizing expectations and curbing power. It will be argued that since these other functions require stable and precise law, classical legal doctrine which aims at removing inconsistencies is still indispensable.

Keywords: Goal-legislation; regulation; delegated rule-making; autonomy of law; autopoiesis; conditional reasoning; self-reference.